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Rule 437. No Affirmance, Reversal or Dismissal for Want of Form or Substance (1978)

TEXT

A judgment shall not be affirmed or reversed or an appeal dismissed for defects or irregularities in appellate procedure, either of form or substance, without allowing a reasonable time to correct or amend such defects or irregularities, provided the court may make no enlargement of time prohibited by Rule 5 nor any enlargement of the time for filing transcript and statement of facts pursuant to Rule 21c.

Amended by order of July 11, 1977, eff. Jan. 1, 1978: Corrective only. Rule 21c is substituted for the reference to Rule 386.

ADVISORY OPINIONS

(No. 42) Question: Where there is not a complete statement of facts on appeal will all reasonable presumptions be indulged in favor of the judgment of the lower court as was the rule under the former practice?

Answer: Our correspondent, in support of his view of the law under the former practice cites inter alia: O'Brien v. Hart, 80 S.W.2d 464 (Tex. Civ. App.-Beaumont, 1935); Sawyer v. First Nat'l Bank of Hico, 41 Tex.Civ.App. 486, 498, 93 S.W. 151, 158 (1906); Newnom v. Williamson, 46 Tex.Civ.App. 615, 103 S.W. 656 (1907).

The subcommittee is of the opinion that the presumption referred to would not apply under the new rules.

Our correspondent observes that: "If this same presumption should be indulged under the new rules, we would defeat the very purpose intended to be accomplished by authorizing the filing of only a partial statement of facts."

This observation seems to the subcommittee to be correct in the light of wording in the rules which is now recited.

A main purpose of the rules concerning appeal is announced by Rule 370 in this way:

"In view of the crowded condition of the dockets of the appellate courts, the record and briefs on appeal should be limited as far as possible to the questions relied on for reversal. The primary purpose of the courts is to administer justice between the parties with as little expense and delay as possible. Liberal provisions are therefore made in these rules for amendments' on appeal to bring forward any material matter which may have been omitted. With this protection the bar is expected to cooperate in shortening the records in furtherance of the provisions of these rules."

Pursuant to this purpose, Rule 377, respecting the statement of facts, requires that: "All matters not essential to the decision of the questions presented on appeal shall be omitted."

At a later point the same rule, carrying out this policy, reads that: " ... the appellant shall deliver or mail to the appellee or his counsel and file with the clerk of the court a designation in writing of the portions of the evidence desired, and shall specify the portions desired in narrative form, if any, and the portions desired in question and answer form, if any, and the portions that are desired to be omitted. Within ten days thereafter any other party to the appeal may file a designation in writing of any additional portions of the evidence to be included, specifying the portion desired in narrative form, if any, and the portions desired in question and answer form, if any."

Then there is this further alternative practice looking to the same end:

"Rule 377-a. Statement of the Points to Be Relied On. - For the purpose of inducing the opposing party to accept an abbreviated transcript or statement of facts, the appellant, or the appellee to the extent that he complains of the judgment or any part thereof, may file with the clerk of the trial court a statement of the points on which he intends to rely on appeal; and he shall thereafter be limited to such points."

It will be seen from these rules that the appellee may readily get into the statement of facts anything that the appellant omits. For this reason and in order to encourage curtailment of the statement of facts, it seems to be within the purpose of the' rules to depart from the old presumption.

If it should be that either of the parties omits something that should be in the statement of facts, there are liberal provisions in the rules for amendment even after the statement of facts gets into the appellate court. One of the rules to this end is 428. It reads:

"If anything material to either party is omitted from the transcript or statement of facts, the parties by stipulation, or the trial court, either before or after the record has been transmitted to the appellate court, or the appellate court, on a proper suggestion or on its own initiative, may direct a supplemental record to be certified and transmitted by the clerk of the trial court supplying such omitted matter."

Another of the rules to the same end is 437. It applies to the Courts of Civil Appeals, and reads:

"A judgment shall not be affirmed or reversed or an appeal dismissed for defects or irregularities in appellate procedure, either of form or substance, without allowing a reasonable time to correct or amend such defects or irregularities, provided the court may make no enlargement of time prohibited by Rule 5 nor any enlargement of the time for filing transcript and statement of facts except as contemplated by Rule 386." (The exceptions have nothing to do with the present situation.)

Rule 504 applies to the Supreme Court and is to the same effect.

So that, the subcommittee agrees with its correspondent's views when he says in concluding his letter:

"In view of the abundant provisions contained in the new rules authorizing the appellee to designate any additional matter which he desires to have brought up on the statement of facts, and further provisions allowing him to supplement the statement of facts later, if necessary, the old presumption should not prevail."

5 Tex. B.J. 236 (1942) reprinted in 8 Tex. B.J. 17 (1945).

(No. 62) Question: Where a transcript, containing findings of fact and conclusions of law, has been filed in the Court of Civil Appeals within the sixty days' time prescribed by Rule 386, but no statement of facts has been filed within such time, if, pursuant to a stipulation, a statement of facts is afterward tendered to the Clerk of the Court of Civil Appeals for filing which shows the evidence upon which the judge made his findings, is it the duty of the clerk to file such statement of facts?

Answer: We consider that the correct answer is in the negative. While a stipulation without order of court will of itself justify the filing of a supplemental statement of facts, on authority of Rule 428, the tardy filing of an entire statement of facts can only be had upon order of the court, which in such respect, as a relaxation of the applicable period of limitation that was imposed for the purpose of expediting appellate business, has a discretion to grant or refuse the motion. See Rules 437 and 386, Vernon's Ann. Civ. St.,

Art. 1839, 2 Tex. Jud. C. Rep. 4-5, and 18 Tex. Law Rev. 8 and Plate III. That the filing in the present instance was stipulated would doubtless be a cogent reason for granting the motion if timely made. That findings of fact were in the instant transcript might formerly have indicated some sort of an election to go up in that way, but under the present Rules that fact would not weigh against the filing of the statement of facts since the policy of the Rules is not to punish missteps and changes of plan but to reach the merits of Appeals. Rules 1, 370, 386, 428. In our opinion, however, none of these considerations is for the clerk. He has no authority to file a tardy statement of facts, of which no part has been filed in time, unless his Court so orders.

5 Tex. B.J. 427 (1942) reprinted in 8 Tex. B.J. 26 (1945).

(No. 69) Question: Does the answer in No. 42 on Page 236 of 5 Tex. B.J. undertake hold that all presumptions in favor of the judgment of a lower court are to be done away with?

Answer: No. The intention was to say that there will be no presumption that matter omitted from the statement of facts sustains the judgment.

5 Tex. B.J. 428 (1942) reprinted in 8 Tex. B.J. 27 (1945).

(No. 55) Question: 1. Where an application for writ of error was filed and granted before the rules became effective, may the Supreme Court after such rules have become effective properly dismiss such an application without allowing an amendment, upon the ground that jurisdiction because of conflict of decisions is not correctly shown, and properly overrule a motion to amend in such respect?

2. How and under what circumstances may an application for writ of error in the Supreme Court be amended?

Answer: Rule 814 insofar as it is applicable reads: "These rules shall take effect on September 1, 1941. They shall govern all proceedings in actions brought after they take effect and also further proceedings in actions then pending.... "

We are of the opinion that motion to amend, as well as the overruling of such a motion and the dismissal of a writ of error, would be "further proceedings" as contemplated by the above rule.

Rule 1 requires that the rules be given a liberal construction "to obtain a just, fair, equitable and impartial adjudication of the rights of litigants under established principles of substantive law." It is the clear intent of Rules 481 and 504 that the appellate courts should allow reasonable amendments at any time to correct or amend defects or irregularities in want of form. Rule 437, which is applicable to the Courts of Civil Appeals, provides, in substance, that a judgment should not be affirmed or reversed or an appeal dismissed for defects or irregularities in appellate procedure, "either of form or substance, without allowing a reasonable time to correct or amend such defects or irregularities provided the court may make no enlargement of time prohibited by Rule 5 nor any enlargement of time for filing transcript or statement of facts except as contemplated by Rule 387." Rule 504, which specifically applies to the Supreme Court, is to the same effect as Rule 437, which, as stated, applies to actions pending in the Courts of Civil Appeals.

The committee strongly believes that Rules 437, 481, and 504 mark an advanced step in procedure, and that compliance with them will enable the courts in the future to dispose of cases on their merits and reduce to a minimum dismissals for technical procedural defects.

No purpose stands out in the rules with greater prominence than this, viz.; that the attainment of justice, according to the principles of substantive law, is the desideratum in every case; that the rules of procedure should expedite, and not frustrate, the trial of cases on their merit and that irregularities either in matters of form or substance should be, disregarded unless such indulgence and liberality will result in injustice.

Cochran v. Wool Growers Central Storage Co., 140 Tex. 904, 166 S.W.2d 904 (1943), which passes upon a motion to amend an application for writ of error is, we think, in accordance with the above views.

Where the question is raised as to whether the court should dismiss a granted writ of error because of fault in the wording or showing of the application we think that Rule 504, already cited; mandatorily conditions such an order upon the allowance of amendment, for such rule, insofar as here applicable, reads:

"The Supreme Court will not affirm or reverse a judgment or dismiss a writ of error for defects or irregularities in appellate procedure either of form or substance, without allowing a reasonable time to correct or amend such defects or irregularities... "

This mandatory provision for amendment only applies, however, where, the court bases its action upon some such fault.

For a feasible practice in this connection see Hodo v. Mexican Nat'l R.R. Co., 88 Tex. 523, 524, 32 S.W. 511 (1895), and Hilliard v. White, 88 Tex. 591, 593, 32 S.W. 525, 526 (1895).

6 Tex. B.J. 20 (1943) reprinted in 8 Tex. B.J. 30 (1945).

(No. 91) Question: Do the rules which authorize an abbreviation of the record on appeal allow the omission from the transcript of documents showing the jurisdiction of the trial or appellate court? Does Opinion No. 42 of the subcommittee militate against such procedure?

Answer: Opinion No. 42 was only intended to relate to that presumption which had been indulged in by appellate courts to the effect that where the statement of facts was incomplete it would be presumed that the omitted matter was sufficient to sustain the judgment of the trial court. Our Opinion No. 42 related to matters omitted from the statement of facts, and it did not relate to the transcript, nor did it undertake to suggest a rule showing what papers should be contained in the transcript to establish the jurisdiction of the trial or appellate court.

We call attention to Opinion No. 69, 5 Tex. B.J. 428, which construes Opinion No. 42 and states that it was not the intention of Opinion No. 42 to say that all presumptions in favor of the judgment of a lower court are to be done away with, the intention merely being to say that there will be no presumption that matter which is omitted from the statement of facts sustained the judgment of the trial court.

The rules provide that when matter is omitted from the transcript the parties shall be given an opportunity to complete the transcript and bring up any omitted document should such document be deemed material. In other words, if the appellate court feels that the petition and bond from the justice's court or any other document should appear in the record in order to give the Court of Civil Appeals jurisdiction, then the rules provide that the parties should be given an opportunity to bring up the omitted documents, and the appeal should not be dismissed without first affording this opportunity. Rules 437, 504.

6 Tex. B.J. 500 (1943) reprinted in 8 Tex. B.J. 36 (1945).

(No. 109) Question: Under amended Rule 414, effective December 31, 1943, if a cause is pending on appeal when the rule takes effect must appellant's brief be filed in thirty days after the record is filed OR is there an enlargement of time for filing such brief?

Answer: We are of the opinion that there is an enlargement of time. As now worded, Rule 414 requires the brief to be filed within thirty days after notice of the date of submission in the Court of Civil Appeals. The amendment, on the other hand, requires it to be filed within thirty days after the date upon which the record is filed in the Court of Civil Appeals. Copies are to be filed in either instance. It should be added that the purpose of the amendment is to prevent delay and any retarding of the supply of business upon which the Courts of Civil Appeals may work. A number of situations could present themselves in an appealed case at the end of the year of 1943 when the amendment becomes effective. If as of that time notice of date of submission has not been given under the old rule and the record has not been filed there is, of course, no difficulty: the time for the brief runs from the date upon which the record shall be filed. If such notice has been given and the record had been filed, under the formula given in Odum v. Garner, 86 Tex. 374, 25 S.W. 18 (1894), whatever proportion of the old period has elapsed at the effective date of amendment is to be deducted from the new period and the rest of the new period is still open. Thus, for example, if two-thirds of the old period has elapsed, one-third of the new period, or, in this case, ten days is still open. If such notice of date of submission has not been given but the record has been filed, by the same principle (since under the old law the full thirty days are still open) full thirty days from the effective date of the amendment are available. If the record has not as yet been filed, under the express words of the amendment full thirty days will lie after the record shall be filed.

In his letter correspondent suggests that aside from any consideration of time as a matter of right, the appellate court may grant time in the exercise of discretion. In this connection we call attention to Rule 437 as amended in 1941, and express the opinion that in determining a "reasonable time" thereunder important factors would be the consideration of actual prejudice to opponent and of the convenience and business load of the court. San Antonio & Aransas Pass Ry. Co. v. Holden, 93 Tex. 211, 54 S. W. 751 (1900), and Rule 414 as amended.

7 Tex. B.J. 15 (1944) reprinted in 8 Tex. B.J. 40 (1945).

(No. 114) Question: Does the opinion of the Supreme Court in Jones v. Ross, 141 Tex. 415, 173 S.W.2d 1022 (1943), adversely affect the abolition of the general demurrer and the provisions for ready amendment of defects of appellate procedure under the Rules of Civil Procedure?

Answer: We think that it does not. In the case referred to, plaintiff's petition in the trial court averred an untenable basis of recovery, defendant's general demurrer was sustained, plaintiff refused to amend, and the suit was consequently dismissed. On appeal the Court of. Civil Appeals reversed, because in its opinion the petition stated a cause of action. The Supreme Court held that the sustaining of a general demurrer was error, under Rule 90, but that it could not reverse the judgment of the district court for such error "because the appellant presented this case to the Court of Civil Appeals on assignments that confined that court to law questions which test the sufficiency of the petition in the district court as against a general demurrer" and because the petition showed that there was no cause of action; and it accordingly reversed judgment of the Court of Civil Appeals and affirmed that of the district court. Motion for rehearing was overruled.

Rule 90 requires that general demurrers shall not be used but that in contested litigation all faults of pleading are waived unless specifically pointed out. A want of cause of action or the failure to state one may be raised but if so, it must be raised specifically in order that the court and also the pleader may proceed with notice of the fault and that amendment may be effected. Rules 90 and 66.

If a general demurrer is urged, the court at the instance of the opposite party or on its own motion should not sustain it but should strike or overrule it or require it to be reworded. Rules 68, 90. By sustaining the general demurrer the trial court therefore commits error. The question then arises whether the error is reversible.

The court in the present decision answers in the negative, apparently because the appellant did not, on appeal, assign error or, complain as to the improper act of the trial court in considering and sustaining a general demurrer. But the opinion impliedly shows that the court was still more persuaded by the conviction that the case was considered in the manner in which the parties desired and that a correct result was reached.

In the state of the record it would seem that by a general demurrer defendant obtained all of the advantage that he would have got from a special one; his demurrer was sustained; and it would seem that the plaintiff waived any objection to the generality of the demurrer by failing to point out that a general demurrer should not be used and by standing on his petition when the general demurrer was sustained. Rule 90.

The defect in appellate procedure above referred to lay in appellant's failure to assign as error the action of the trial court in considering a general demurrer when a special demurrer should have been used. In most judge-tried cases, including any case tried solely on demurrer, the assignment of error is the "point" in the brief. Rules 374, 418. If there was no such point or no sufficient point in the present case and the appellant had asked leave in the Court of Civil Appeals to supply one, or if the appellate disposition had been based upon his omission or fault in briefing, leave to amend in that respect should have been granted before final disposition in such court. Rules 431, 437. But as the Supreme Court says, " ... an examination of plaintiff's brief in the Court of Civil Appeals discloses that he plants himself squarely on the proposition that as a matter of law" the case he alleged was recoverable, when it was not. So that amendment of the brief would have done the plaintiff no more good than amendment of his petition in the first instance. That is, none.

And finally, the ruling of the trial court, for that reason, was not one that was calculated to cause an improper judgment, and for that reason there should have been no reversal on account of it. Rules 434 and 503.

The case, from a procedural standpoint, may be summarized by an illustration. Suppose plaintiff should represent to the trial court and again to the Court of Civil Appeals that his petition showed all he could allege or prove and that he desired to stake his recovery upon it, and suppose those courts should be of the opinion that no recovery could be had in a case of that character whether amendment was had or not. The duty of the courts in such a situation would seem to be no plainer than was the duty of the Supreme Court in the present instance.

The decision, we believe, enforces two underlying principles of the rules: that the trial court should reach the merits of the case before it and that the appellate court should reach the merits of the appeal.

7 Tex. B.J. 44 (1944) reprinted in 8 Tex. B.J. 41 (1945).

(No. 131) Question: In San Antonio Joint Stock Bank v. Malcher, 164 S.W.2d 197, 199 (Tex. Civ. App.-San Antonio 1942), the Court of Civil Appeals held that points presented by appellant, but not briefed were waived. The decision was followed by Piedmont Fire Ins. Co. v. Ladin, 174 S.W.2d 991 (Tex. Civ. App.-Galveston 1943) and, during the present year, by Broussard v. L. Cartwright Realty Co., 179 S.W.2d 777 (Tex. Civ. App.-Amarillo 1944), and Orange Laundry Co. v. Stark, 179 S.W.2d 841 (Tex. Civ. App.-Amarillo 1944). Has appellant any remedy in a Case of this sort?

Answer: Yes. His most obvious remedy is, of course, to comply with the briefing rules when he prepares his brief.

We are of the opinion that he has another remedy; that is, a motion to amend. We beg to quote from a number of rules and cases in support of this answer.

Rule 422. The purpose of briefs being to acquaint the court with the points relied upon, the manner in which they arose, together with such argument of facts and law as will enable the court to decide the same, a substantial compliance with these rules will suffice in the interest of justice; but for a flagrant violation of the rules the court may require the case to be rebriefed.

Rule 429. Should it be apparent during the submission or afterwards that the case has not been properly prepared, as shown in the transcript, or properly presented in the brief or briefs, or that 'the law and authorities have not been properly cited, which will enable the court to decide the case, it may decline to receive the submission; or, if received, may set it aside and make such orders as may be necessary to secure a more satisfactory submission of the case; ...

Rule 431. Briefs may be amended or supplemented at any time when justice requires upon such reasonable terms as the court may prescribe, and if the court shall strike or refuse to consider any part of a brief, the court shall on reasonable terms allow the same to be amended or supplemented.

Rule 437. A judgment shall not be affirmed or reversed or an appeal dismissed for defects or irregularities in appellate procedure, either of form or substance, without allowing a reasonable time to correct or amend such defects or irregularities, ... "

In Gillette Motor Transp. Co. v. Wichita Falls & S. Ry. Co., 170 S.W.2d 629 (Tex. Civ. App.-Fort Worth 1943), the Court decided that under the rules above quoted it could, as it did, "after submission of the cause, allow amendment of 'appellant's brief' in order to present points of error not presented in the original brief."

There are similar rules as to applications for writ of error and briefs in the Supreme Court, viz. Rules 469 subd. (f), 481, 491, and 504.

In Cochran v. Wool Growers Central Storage Co., 162 S.W.2d 941 (Tex. 1942), the Supreme Court, having previously granted a writ of error, dismissed it because the application in its Grounds of Jurisdiction on the subject of conflicts of decisions was not in accordance with the rules. Subsequently, on motion far rehearing, it observed that the application had been filed before the rules went into effect but granted a motion to amend which was filed after their effective date, saying in support of its action: "An examination of Rule 481, supra, will disclose that it provides: ‘The application, ... may be amended at any time when justice requires and upon such reasonable terms as the Court may prescribe...' Rule 504, supra, provides: 'The Supreme Court will not ... dismiss a writ of error for defects or irregularities in appellate procedure, either of form or substance, without allowing a reasonable time to correct or amend such defects or irregularities,...' Clearly these two rules authorize this court to grant one who prosecutes a writ of error to this court the right to amend his application, where it is defective either as to form or substance. Such being the case, an application which is defective, in that it fails to properly state grounds of jurisdiction under Section 1 of Article 1821, R.C.S., or Subdivision (b) of Rule 469, can be amended in this court at any time when, in the opinion of the court, justice so requires. Furthermore, we think the right to amend maybe granted even though the original application for writ of error was filed before the effective date of Rules 481 and 504, supra. This holding in no way violates Rule 814, supra, defining the effective date of our present Texas Rules of Civil Procedure. We will therefore order that the amended application for writ of error be filed, and will now consider this case on such amended application."

See also Moore v. Dilworth, 142 Tex. 538, 179 S.W.2d 940 (1944), in which the same court refused to consider a point of error which was contained in neither the motion for rehearing nor the application. The court, however, took care to add: "It would serve no purpose in this instance to permit the application for writ of error to be amended under Rule 504 because the point was not assigned in the motion for rehearing in the Court of Civil Appeals."

These decisions, and the rules upon which they are based very clearly indicate, we think, that a proper practice on behalf of a party whose appellate contentions have not been considered an account of fault in briefing may and, when he actually has a meritorious contention, should be motion to amend.

7 Tex. B.J. 282 (1944) reprinted in 8 Tex. B.J. 49 (1945).